R. v. Shin (B.S.), 2015 ONCA 189

• Judge: Gillese, Watt and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 17, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 189;(2015), 331 O.A.C. 109 (CA)

R. v. Shin (B.S.) (2015), 331 O.A.C. 109 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.027

Her Majesty the Queen (respondent) v. Brian Stephen Shin (appellant)

(C55565; 2015 ONCA 189)

Indexed As: R. v. Shin (B.S.)

Ontario Court of Appeal

Gillese, Watt and Lauwers, JJ.A.

March 19, 2015.

Summary:

The accused was convicted of possession of marijuana for the purpose of trafficking and possession of the proceeds of crime over $5,000.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 6293, sentenced the accused to six years' imprisonment, with an order restricting parole eligibility until he had served half of his sentence. The accused was also ordered to pay, within three years of the date of sentence, a fine of $500,000 and a victim surcharge of $75,000. The accused appealed the conviction, applied for leave to appeal sentence, and if leave was granted, appealed the sentence.

The Ontario Court of Appeal dismissed the conviction appeal, granted leave to appeal sentence and allowed the sentence appeal in part.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused began selling marijuana when he was in grade nine - He continued to sell marijuana, in ever-increasing amounts, for the 14 years prior to his arrest - The accused was investigated as a part of Projet Isis, a street level undercover trafficking investigation - The police discovered that the accused and others were using an apartment to traffic drugs and obtained a search warrant - Police executed the search warrant while the accused was away - They found drugs, money and drug trafficking paraphernalia - The police remained in the apartment until the accused entered using keys to unlock the door - The police immediately arrested him and seized the keys - The accused's car was searched and revealed more drugs and money - An application judge found violations of ss. 8 and 10(b) of the Charter and excluded certain evidence - The accused was convicted of possession of marijuana for the purpose of trafficking and possession of the proceeds of crime over $5,000 - The accused appealed the conviction, asserting that the application judge erred in failing to exclude evidence relating to the accused's entry into the apartment (the keyed evidence entry) under s. 24(2) of the Charter - The Ontario Court of Appeal dismissed the appeal - After considering the overstaying in conjunction with the other breaches as found by the application judge, a balancing of the three R. v. Grant (D.) (SCC 2009) factors led the court to conclude that admission of the keyed entry evidence would not bring the administration of justice into disrepute - See paragraphs 57 to 72.

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - The accused began selling marijuana when he was in grade nine - He continued to sell marijuana, in ever-increasing amounts, for the 14 years prior to his arrest - The accused was investigated as a part of Projet Isis, a street level undercover trafficking investigation - The police discovered that the accused and others were using an apartment to traffic drugs and obtained a search warrant - Police executed the search warrant while the accused was away - They found drugs, money and drug trafficking paraphernalia - The police remained in the apartment until the accused entered using keys to unlock the door - The police immediately arrested him and seized the keys - The accused's car was searched and revealed more drugs and money - The accused was convicted of possession of marijuana for the purpose of trafficking and possession of the proceeds of crime over $5,000 - The accused appealed the conviction, asserting that the application judge erred in finding that the warrant had been lawfully obtained - The accused's challenge to the sufficiency of the warrant was based on D.C. French's lack of recollection, at the time of the pre-trial motion, of his attendance some two years earlier at the Peak Top restaurant and his lack of notes on the same matter - The Ontario Court of Appeal dismissed the appeal - The French issue did not assist the accused because there were sufficient grounds for the warrant to be issued without the evidence of the Peak Top restaurant meeting - See paragraphs 73 to 81.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Criminal Law - Topic 3051 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Criminal Law - Topic 3051 ].

Criminal Law - Topic 5627

Punishments (sentence) - Fines, penalties and compensation orders - Victim fine surcharge - [See Criminal Law - Topic 5853 ].

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine (incl. ability to pay) - [See Criminal Law - Topic 5853 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility (incl. jury recommendation) - [See Criminal Law - Topic 5853 ].

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for purposes of trafficking) - The accused was convicted of possession of marijuana for the purpose of trafficking and possession of the proceeds of crime over $5,000 - The accused was sentenced to six years' imprisonment, with an order restricting parole eligibility until he had served half of his sentence - The accused was also ordered to pay, within three years of the date of sentence, a fine of $500,000 and a victim surcharge of $75,000 - The accused appealed the sentence - The Ontario Court of Appeal allowed the appeal in part - That part of the accused's sentence relating to the possession of the proceeds of crime conviction was not subject to delayed parole eligibility under s. 743.6(1) of the Criminal Code and the court varied the sentence accordingly - Further, the court reduced the fine to $75,000 - There was no evidence, on the balance of probabilities, that the accused could pay a $500,000 fine - As a result of the reduction in the fine, the victim surcharge had to be reduced correspondingly to $11,250 - The court gave the accused three years from the date he was discharged from prison within which to pay both the fine and the surcharge - See paragraphs 87 to 128.

Criminal Law - Topic 5972

Sentence - Money laundering or proceeds of crime - [See Criminal Law - Topic 5853 ].

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - [See Criminal Law - Topic 3051 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Criminal Law - Topic 3051 ].

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 42].

R. v. Larche (J.-P.), [2006] 2 S.C.R. 762; 355 N.R. 48; 2006 SCC 56, refd to. [para. 50].

R. v. Nguyen (D.V.) et al. (2011), 281 O.A.C. 118; 273 C.C.C.(3d) 37; 2011 ONCA 465, refd to. [para. 68].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 78].

R. v. Sadikov (S.) et al. (2014), 314 O.A.C. 357; 2014 ONCA 72, refd to. [para. 78].

R. v. Campbell (N.M.), [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 78].

R. v. Tran, [2005] O.J. No. 5920 (S.C.), affd. [2006] O.J. No. 4161 (C.A.), refd to. [para. 99].

R. v. Hickey (R.) (2000), 150 Man.R.(2d) 158; 230 W.A.C. 158; 2000 MBCA 97, refd to. [para. 101].

R. v. Topp (J.P.), [2011] 3 S.C.R. 119; 421 N.R. 95; 283 O.A.C. 1; 2011 SCC 43, refd to. [para. 112].

Counsel:

Peter Thorning and Richard Diniz, for the appellant;

Nicholas Devlin and Carolyn Otter, for the respondent.

This application and these appeals were heard on February 17, 2015, by Gillese, Watt and Lauwers, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Gillese, J.A., on March 19, 2015.